| by Laksiri Fernando
(
November 30, 2012, Sydney, Sri Lanka Guardian) With the impeachment motion
against the Chief Justice, some of the old debates have surfaced in new form.
One of which is the question of supremacy of Parliament. This was a matter of
contention in early 1970s during the debates over the 1972 constitution which somewhat
died down with the advent of the executive presidential system; JR Jayewardene
claiming that he could do anything other than making a ‘man a woman or a woman
a man.’ This adage was traditionally attributed to the British Parliament,
which was claimed to be supreme. JR kept undated letters of resignation from
all MPs of his party to ‘prove or disprove’ that ‘Parliament is supreme.’
When
the first press announcement was made about the impeachment motion, the
government spokesman, Keheliya Rambukwella, claimed that the Chief Justice has
violated the supremacy of Parliament (Combo Page, 1 November 2012). But it was
not a charge in the impeachment motion. By that time many MPs in the ruling
coalition had surrendered their signatures to a blank paper to be attached to the
impeachment motion, reminding the undated resignation letters of JR
Jayewardene’s time! What they verbally said however was that the judiciary
should not object to whatever they want to do in Parliament whether
constitutional or not apparently on the instructions of the President. During
the Divineguma hearing before the Supreme Court, some argued that the Bill is
not unconstitutional because the Parliament is supreme.
The
reason for this argument is one phrase in Article 4 (c) of the Constitution
which says the following:
“The judicial power of
the People shall be exercised by Parliament through courts, tribunals and
institutions created and established, or recognized, by the Constitution, or
created and established by law, except in regard to matters relating to the
privileges, immunities and powers of Parliament and of its Members, wherein the
judicial power of the People may be exercised directly by Parliament according
to law.”
The
phrase “the judicial power of the people shall be exercised by Parliament
through courts…” cannot however be taken in isolation without properly reading
the conditional clause “created and established, or recognized, by the
Constitution, or created and established by law…” The intermediation of
Parliament between the people and the judiciary is conditioned by the
Constitution and the Constitution is supreme. If there is any judicial power
directly to the Parliament that is in respect of “matters relating to the
privileges, immunities and powers of Parliament and of its Members.”
It
is understandable that the parliamentarians wish to ‘feel and claim’ that they
are part of a supreme body, but constitutionally speaking this is not the case
in Sri Lanka. It is only good for their ego. Even people might be delighted to
see if the parliamentarians could assert their dignity and pride against the Executive
President, under whose powers the Parliament has simply become a rubber stamp
or something worse. If they assert, then they may call it ‘supreme.’ But this
is not the case at present. Instead they try to assert their illusory supremacy
against the Supreme Court, which in fact they should respect and safeguard.
This is the tragedy of the political situation in Sri Lanka today. They are
barking up the wrong tree.
The
Supreme Court is only doing a professional job independently by interpreting
the constitutionality of the bills. They should not be dragged into politics by
all parties, those who are for or against the impeachment.
British Concept
Talking
about ‘supremacy’ of anything is only illusory or relative these days. This
applies to the concept of ‘sovereignty’ as well, except in its ultimate sense
in respect of the ‘people’s sovereignty’ who can legitimately overturn
governments and reconstitute constitutions through genuine representatives.
Otherwise all are dependent on each other and the balance between the ‘national
and the international’ or the balance between ‘different branches of government’
are common everywhere. That is in respect of politics and society.
But
in respect of law, some still wants to refer to a specific legal source and
that his how the British concept of the supremacy of parliament emerged.
Parliament here however did not mean only the House of Commons. AV Dicey is one
of the prominent authorities on the subject. In his Introduction to the Study of the law of the Constitution (1885) he
said “Parliament means The King, the House of Lords, and the House of Commons: these three bodies acting together may be aptly described
as the ‘King in Parliament’, and constitute Parliament.”
He further said “The principle of Parliamentary sovereignty means neither
more nor less than this, namely that Parliament thus defined has, under the
English constitution, the right to make or unmake any law whatever; and,
further, that no person or body is recognized by the law of England as having a
right to override or set aside the legislation of Parliament.”
In
the above statement, ‘no person or body’ at one point meant mainly the Church
or the Pope. We also have to keep in mind that the House of Lords was Britain’s
‘Supreme Court’ before 2009. Therefore, the ‘Supreme Court’ was included in the
concept of supremacy.
Leaving
aside that legal concept, there is no political reality in the concept of the
supremacy of Parliament in the United Kingdom today. Four main reasons can be
attributed: (1) the devolution of power to the Scottish Parliament and the
Welsh Assembly, (2) the Human rights Act of 1998, (3) the UK’s entry to the
European Union in 1972 and (4) the decision to establish a Supreme Court in
2009.
Supremacy in Finland
In
the case of republics like Sri Lanka, the general concept of the source of law
is not Parliament but the people themselves. Jayampathy Wickremaratne has very
clearly explained this to The Island
newspaper giving an interview to Lynn Ockersz (26 November 2012). That is why
the American Constitution begins by saying “We the People of the United
States.” There the separation powers are almost a sine qua non. It was rather
dangerous to handover sovereignty of the people to one single body.
But
there were countries, in the socialist block, which believed that the people’s
sovereignty can be transferred into a legislature that would constitute supreme;
and no law court or any such institution could curtail or check its legislative
functions. Most of these countries now have vanished, except the caricatures
like North Korea. Almost all of these countries were one party States. The
theory of this ‘supremacy’ in fact was a justification for the authoritarian
one party rule.
There
were very few other countries which were not directly in the socialist block
but nevertheless shared a similar concept of legislative supremacy. Sri Lanka
in 1972-77 and Finland even today are examples. Their concept was or is a
combination of some sort of socialism and utilitarian thinking. Even the
liberal utilitarian thinkers (i.e. Jeremy Bentham) strongly believed in strong
horizontal democracy for progressive legislative purposes. There is some
resonance of this thinking even today among those who oppose the Supreme Court
ruling on the Divineguma Bill and wanted to impeach the Chief Justice for that
crime. But this is only a mistaken conception.
Neither
in the present Finish Constitution (2000) nor in the First Republican
Constitution in Sri Lanka (1972) that a blatant concept of supremacy was
enshrined as asked by the government aligned law makers today in Sri Lanka. The
reason why the Finish Parliament is called supreme is the following clause in
Section 2 of the Constitution.
“The sovereign powers of the
State in Finland are vested in the people, who are represented by the
Parliament.”
Based
on that premise, the Supreme Court in Finland does not review the
constitutionality of a bill prior to enactment although the judicial system
headed by the Supreme Court has considerable power on rule of law and
implementation of law based on separation of powers in the Constitution. The review
of constitutionality of a bill is vested within the Parliament itself. There is
a Constitutional Law Committee of Parliament to review all bills and recommend
changes, if needed. They do it fairly impartially. They do not allow normal
legislation to go through in contravening the Constitution through a special
majority like in Sri Lanka. Most interestingly, the Finish courts do have a form
of ‘post-judicial review’ to the extent that if there is an inconsistency
between a normal law and the Constitution then they have power to uphold the
Constitution. In Finland changing the Constitution is also not an easy process.
Now
our law makers should not jump on the Finish example to uphold the supremacy of
Parliament and reject the directives or ‘recommendations’ of the Supreme Court.
Sri Lanka’s present Constitution is different. I remember the former President
of Finland (1994-2000), Martti Ahtisaari, saying at a close meeting in Colombo,
organized by Lakshman Kadirgamar, somewhere in 2003 that the Finish Constitution
is still under scrutiny and they may go for more separation of power through
experience. He also explained that the supremacy of Parliament was instituted
to move away from the previous Presidential system where the President had veto
powers on legislation. As far as I understand, Martti Ahtisaari played a major
role in this transition.
1972 and 1978 Constitutions
One
may argue that something closer to the supremacy of Parliament was in the First
Republication Constitution of Sri Lanka in 1972. But it is not the case today. Articles
3 and 4 of the 1972 Constitution stated “In the Republic of Sri Lanka,
Sovereignty is in the People and is inalienable. The Sovereignty of the People
is exercised through a National State Assembly of elected
representatives of the People.” (my emphasis).
The comparable Article 3 of the 1978 or the present Constitution says in
contrast the following.
“In the Republic of Sri Lanka sovereignty is in the people and is
inalienable. Sovereignty includes the powers of government, fundamental rights
and the franchise.”
It is very clear that the second proposition which was there in the 1972
Constitution that the ‘sovereignty of the people is exercised through National
State Assembly/Parliament’ or something similar is not there. Instead,
sovereignty is defined to include ‘fundamental rights and the franchise’ in
addition to the ‘powers of government.’ It has to be added that the Supreme
Court has constitutional power in safeguarding the fundamental rights of the
people which is a clear part of sovereignty.
In terms of the three branches of the government or how the delegated
sovereign powers are exercised, there are comparable articles in the 1972
Constitution and the present (1978). In the 1972 Constitution, it is Article 5.
In the present Constitution it is Article 4. Article 5 of the 1972 Constitution
begins by saying:
“The National State Assembly is the supreme instrument of State power of
the Republic.”
It is very clearly stated that the ‘National State Assembly is the supreme
instrument of State power.” In contrast, Article 4 of the present Constitution
simply begins by saying
“The Sovereignty of the People shall be exercised and enjoyed in the
following manner.”
I can go on and on giving more
examples but simply there is no conception of the supremacy of Parliament or
anything similar in the present Constitution. That is what matters to the
present debate. Of course some of the parliamentarians of the UPFA may say that
they uphold the ideology of the 1972 Constitution and not the present. That is
well and good but first they should respect the present Constitution and work
within its four corners.
Conclusion: Supremacy of the Constitution
In respect of any supremacy that we
can think of in politics, it is the Constitution that is supreme. The rule of
law and constitutionalism are the main derivatives of that supremacy. Supremacy
of the Constitution in turn is a reflection of the sovereignty of the people,
their powers of government, fundamental rights and the franchise that are
mentioned in the Constitution. The ‘powers of government’ are not the powers of
corrupt politicians but the powers of the people. They include not only the
powers of the Centre but also the Local Government and the Provincial Councils.
Even in ancient times there were two
types of law that were recognized: (1) Dhamma
Thath or laws of Dhamma and (2) Yasa Thath or laws of the King. It was
believed, although not always practiced, that the laws of the King should be
consistent with the laws of Dhamma. That is how the moral legitimacy derived
for government. Dhamma Asoka was one king who tried to practice his laws
according to the higher laws of Dhamma.
Supremacy of the Constitution in Sri
Lanka is evident from many aspects of the Constitution; first and foremost from
the strict provisions for its amendment and repeal. The Constitution is
subordinate only to the sovereignty of the people, ultimately through
referendum. The legal and formal interpretation of the Constitution is assigned
only to the Supreme Court and that is why the SC should be considered in utmost
respect as a collective and an institution. Their interpretations are binding
on the members of Parliament and the Parliament itself. People are well aware
of the character and calibre of many politicians in the country today,
particularly of the governing party. They have simply become corrupt through
money and power. The backing of the army should not be considered as legitimacy
for their illegitimate behaviour or arrogant disregard of the Constitution.
All members of Parliament have already
taken an oath to uphold the Constitution. This is a vindication of the
supremacy of the Constitution. According to Article 63, the oath is as follows:
“I ................ do
solemnly declare and affirm /swear that I will uphold and defend the
Constitution of the Democratic Socialist Republic of Sri Lanka.”
Politically speaking, however, the
people may appreciate the Parliament asserting some sort of ‘supremacy’ against
the Executive; a supremacy on condition and with checks and balances. That
should be against the Executive and not against the Judiciary. The Judiciary is
a professional body and should be independent from all politics. This assertion
against the Executive should lead to a change in the present Constitution from
the executive presidential system to a parliamentary form of government in the
future.
The need for this assertion today primarily
derives because of family rule within the Executive; the President holding
almost absolute executive powers; one brother controlling the armed forces and now
also the police; another brother is being the most powerful Minister in
Parliament; and yet another brother trying to control Parliament being the
Speaker of Parliament.
If there had been many family dynasties
in history, the present caricature in Sri Lanka might be the worst and the
vicious kind clothed under a ‘democratic garb.’ This is utterly shameful by all
ethical norms and standards.
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